Compliance Strategies

1. Compliance Strategies For Physician Practices

2. Government Enforcement Efforts Healthcare fraud is the #2 priority of the Department of Justice, second only to terrorism and violent crime.

3. Government Enforcement Efforts The Obama administration said on February 11, 2013 that its efforts to combat fraud in the Medicare and Medicaid healthcare programs were paying off as the government recovered a record $4.2 billion in fiscal 2012 from individuals and companies trying to cheat the system.

4. Government Enforcement Efforts • The $4.2 billion recouped in fiscal 2012 from those attempting to defraud federal healthcare programs, including Medicare for the elderly and Medicaid for the poor, was up from nearly $4.1 billion the year before. • Over the past four years, enforcement efforts have recovered $14.9 billion, more than double the $6.7 billion recouped over the prior four-year period.

5. Government Enforcement Efforts • For every dollar spent investigating healthcare fraud over the past three years, the government recovered $7.90. • This was the highest three-year average return on investment in the 16-year history of the federal Health Care Fraud and Abuse Program.

6. Government Enforcement Efforts On May 20, 2009, the HHS Secretary and the Attorney General announced the creation of the Health Care Fraud Prevention and Enforcement Action Team (HEAT), an interagency effort focused specifically on combating health care fraud

7. Government Enforcement Efforts Since the HEAT Strike Force's inception, operations in nine locations have charged more than 1,000 defendants who collectively have falsely billed the Medicare program for more than $2.3 billion.

8. Government Enforcement Efforts The Patient Protection and Affordable Care Act authorized additional tools to fight fraud, including tougher eligibility screening for Medicare providers, increased data sharing among government agencies and greater oversight of private insurance abuses. http://www.healthcare.gov/news/factsheets/2010/09/new-tools-to-fight-fraud.html

9. Healthcare Reform Law and Mandatory Compliance Programs • Congress for the first time has mandated that a broad range of providers, suppliers, and physicians adopt a compliance program • The Healthcare Reform Law’s compliance program mandates are divided into two categories: (1) nursing facilities and (2) all other providers/suppliers.

10. Healthcare Reform Law and Mandatory Compliance Programs • Right now specific implementation deadlines for nursing homes but not the others • Expect provider/supplier compliance program mandates to be issued on a rolling, industry sector–specific basis • DME & Home Health first?

11. What is an Audit? • An audit is a review of medical claims submitted to a government or private payer. • Audits can be conducted due to: • A random event • A Qui Tam event • Benchmarking event • At times, it may be impossible to determine what triggered an audit, but you must always be prepared

12. Enforcement A neurologist who owned and operated a Brooklyn, N.Y. medical clinic, pled guilty to one count of health care fraud for his role in a scheme to defraud Medicare and other carriers. Claims were submitted for services that were not provided; billed for a level of service higher than that which he performed; double-billed different health care benefit programs for the same service provided to the same beneficiary; and billed for services purportedly performed when he was out of the country.

13. Enforcement On July 2, 2012, the DOJ announced that an Arizona company with a chain of urgent-care facilities agreed to a $10 million settlement. The company was accused of billing Medicare and other health coverage plans for unnecessary tests as well as inflating billings, or "upcoding."

14. ER BILLING COMPANY AND PHYSICIAN FOUNDER TO PAY $15 MILLION FOR HEALTH CARE BILLING FRAUD Billing company typically upcoded claims and billed for services more extensive than those actually provided by the physicians.

15. Enforcement On September 19, 2012, one of the nation's largest for-profit hospital chains agreed to pay $16.5 million to settle allegations that it gave financial benefits to doctors in exchange for patient referrals. For example, the hospital chain allegedly paid above-market rent amounts for office space owned by a doctor group to help the group pay its mortgage and to encourage the group to refer patients to the hospital.

16. Enforcement North Carolina internist accused of defrauding federal healthcare programs — doctor accused of knowingly submitted false or fraudulent claims to Medicare and Medicaid for services that were either never rendered, medical unnecessary or not supported by proper documentation. Doctor also allegedly submitted claims for patients who did not qualify for medical services reimbursement.

17. Enforcement On November 5, 2012, a Missouri-based healthcare provider and hospital system agreed to pay $9.3 million to resolve allegations that it violated the Stark Act and the FCA by knowingly billing Medicare for services referred to the provider by physicians that had a financial relationship with the provider. The provider allegedly gave incentive pay to approximately seventy physicians based on the revenue generated by the physicians' referrals for certain diagnostic testing and other services performed at provider-owned clinics, and then billed Medicare for the services.

18. Enforcement • California Oncologist sentenced to prison for billing for cancer medications that were never provided. • Maryland cardiologists convicted for inserting unnecessary cardiac stents. • Couple convicted of soliciting and receiving kickbacks, of offering and paying kickbacks, and of conspiring to violate the Anti-Kickback Statute. At trial, the government introduced in evidence audio and video recordings demonstrating that the couple made cash payments to physicians for referring patients to their imaging center

19. Enforcement • An Illinois physician ordered medically unnecessary tests for patients, used false diagnosis codes to justify the tests, and then submitted claims for government reimbursement.  The government's evidence included testimony that the defendant administered EEGs, EKGs and other tests for an unusually high number of patients, which was perhaps the trigger to a more detailed government review of his practice.  For his efforts, the defendant was given a 2-½ year prison sentence.    • A New Jersey doctor was convicted of accepting cash kickbacks in exchange for referring patients to a medical diagnostic facility, and was caught when he accepted payments from a cooperating government witness. 

20. Health Care Fraud (18 U.S.C. § 1347) It is a crime to knowingly and willfully execute (or attempt to execute) a scheme to defraud any health care benefit program, or to obtain money or property from a health care benefit program, through a false representation. This law applies not only to federal healthcare programs but to most other types of benefit programs, such as commercial health insurance plans.

21. Health Care Fraud (18 U.S.C. § 1347) Is it possible to move from an unintentional error (civil penalty) to knowingly and willfully committing criminal healthcare? THE E/M CODING EXAMPLE

22. Conduct to Avoid • Billing for services never provided to patients. • “Upcoding” - billing for more extensive services than weren’t actually rendered. • Falsely certifying that services were medically necessary. • “Unbundling” - billing for each component of the service instead of billing an all-inclusive code.

23. Conduct to Avoid • Billing for non-covered services as if covered. • Flagrant and persistent over utilization of medical services with little or no regard for results, the patient’s aliments, condition, or medical needs. • Consistent use of improper or inappropriate billing codes, such as billing for the same level of service or diagnosis code irrespective of the services rendered in the individual case.

24. What Enforcement Cases Should Teach Physicians • Assume the government will be reviewing records of the tests administered to patients, and ensure that all tests are medically necessary. • Periodically compare the quantity of drugs utilized to the services rendered to ensure that there is a reasonably relationship between the two.

25. What Enforcement Cases Should Teach Physicians • Any offer to provide remuneration in exchange for services or referrals should be a "red flag" for fraud.  • Any activities that are handled by others should be periodically examined -- preferably without advance notice lest a criminal actor hide his/her tracks -- to make sure that others are not submitting false claims without approval.  Otherwise, you might be the next physician whose education renders a lack-of-knowledge claim incredible.

26. Actual Letter From CMS “You received this letter because recent analysis of recent data shows you are billing specific E/M services in percentages different from your peers (nationally and state)……We ask that your review your billing practices……We will continue to monitor your claims submissions to determine if your patterns of billing these services are more in line with Medicare’s expectations.”

27. What Payors Want Payors (including MEDICARE) require reasonable documentation to ensure that services provided are consistent with coverage. Information is often requested to validate the following: • Site of service (often reimbursement varies) • Medical necessity and appropriateness of the diagnostic and/or therapeutic services provided • Accurate reporting that services were provided at the level claimed

28. General Principles of Documentation • Physician orders should be documented before a service is performed • An addendum should be dated and timed the day the information is added to the medical record and not dated for the date the service was provided • A service should be documented when it is provided in order to maintain an accurate record (timeliness) • Confidentiality of the medical record should be fully maintained consistent with the requirements of medical ethics and law

29. Effective Compliance Program Elements U.S. Federal Sentencing Guidelines and relevant Compliance Program Guidelines include the following requirements: • Establishing compliance standards (policies and procedures) • Assigning senior management oversight responsibility • Using “due care” when assigning responsibility to an employee (I.e., screen employees for past offenses) • Conducting effective training and education • Establishing reporting and monitoring mechanisms • Enforcing standards and disciplining violators • Responding to violations to prevent future offenses

30. Preventive “Medicine” • Implement a Compliance Plan • Employee Background Checks • Annual question on “Employee Evaluations” inquiring as to: • Illegal conduct • Unethical conduct • Fraudulent conduct • Require signature • Exit interview forms requesting similar information • “Spot Check” on billing/medical record information • Audit 10 records per year per provider (non-statistical sample)

31. Preventive “Medicine” • Implement a document retention and destruction policy • Require signed attendance sheets for all relevant training (on-site, carrier, teleconference) • Require initials on all Carrier Notices • Require all employees to access the CMS MedLearn site • Only maintain documents as to the steps actually undertaken – NOT what you THINK the government “would like to see”

32. Preventive “Medicine” • Establish a Coding Compliance Committee • Meet periodically or annually to • Approve policies and procedures • Review findings and results from audits • Focus on problem areas, and • Determine actions that need to be taken

33. OIG Compliance Program for Individual and Small Group Physician Practices October 5, 2000 Federal Register http://oig.hhs.gov/authorities/docs/physician.pdf Simple Sample Plans: http://www.healthplan.org/pdf/SampleCompliancePlan.pdf http://www.med-certification.com/practice-compliance-plan-sample-oig

34. Other Compliance Points • HIPAA • OSHA • Blood Borne Pathogen • Worker Safety • Stark • Compensation Arrangements • Below Market Rents • Human Resources (EEOC, Overtime, State Unemployment Agency)

35. Compliance Everyday compliance – you should have this in place right now: • PREVENT • DETECT • CORRECT

36. Final Thoughts • Be Proactive, not Reactive • Implement a compliance plan • Put policies, procedures and systems into place • Train, educate and inform all staff • MONITOR ongoing compliance • View HEAT Provider Compliance Training Webcast Modules http://www.oig.hhs.gov/newsroom/video/2011/heat_modules.asp

37. Final Thoughts Whether you are an employee or an employer ALWAYS, ALWAYS consult legal counsel prior to any communications with government agents.

38. Questions & Answers Reed Tinsley, CPA www.rtacpa.com reedt@rtacpa.com